Live By The Patent, Get Sued By The Patent

from the such-is-life dept

Microsoft has been a big believer in patents lately, even though Bill Gates once classically noted that the computer industry would have been at a "standstill" if people had aggressively patented ideas back in the early days of personal computing. Since then, however, Microsoft has massively ramped up its patenting machine. But, of course, if you live by the patent, you should expect to get sued by the patent as well. Brian writes in to let us know that a patent holding firm, with a long history of suing a bunch of big name tech firms is now suing Microsoft as well, claiming that every copy of Vista, Windows 7, and Windows Server 2008 violate its patent 6629163 on "Demultiplexing a First Sequence of Packet Components to Identify Specific Components Wherein Subsequent Components are Processed without Re-Identifying Components." I have no idea if the patent is valid or not, but I always find it amusing when big patent system supporters find themselves sued for patent infringement as well.

Hmm. An economic system by which the only inventors/coders/developers must also have lawyer acumen.

Fascinating.

So if we have to describe everything in legalese, why don't we just fix the whole system in one fell swoop- Seeing that we're going towards this one-world-patent and IP system, I propose that all inventions must be described in Latin.

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what about Arabic or, ... Chinese. In fact, it must be written in many languages, English, Spanish, Chinese, Arabic, French, Japanese, Latin, etc... I mean, it wouldn't be fair for an inventor who doesn't speak the language that the patent was written in to get sued for infringing just because they don't speak that particular language. It gives those who do speak that language an unfair advantage.

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I seriously doubt that this patent should pass the obviousness test, and even then I would be shocked if there is no prior art...

Because as far as I can tell it just covers the idea that when a connection is made you remember what path packets for that stream have to take so you don't have to redo a bunch of work for every packet that comes in... This is the sort of thing that people would look at you funny if you had a real system that DIDN'T work that way.

Live by the patent doesn't matter

If Microsoft hadn't patented _anything_ they would still be getting sued by this person.

I think the metaphor is more a case of "Sail in the sea of patents, don't be surprised when you get hit by one."

I have been a professional programmer for 30+ years (and an amateur for a few more than that) and I have _never_ understood the justification for software patents. I also remember there was a supreme court case from the ;ate 1800's abo9ut a patent on what amounts to double-entry book keeping that they tossed because "business processes" are not patentable. What is any software other than "business processes" (depending on the definition of "business").

I'm waiting for the Supremes to get a case where they can finally put a stake in this vampire that drains the life from the software industry.

Re: Live by the patent doesn't matter

"I have been a professional programmer for 30+ years (and an amateur for a few more than that) and I have _never_ understood the justification for software patents."

Ben, there are programmers and then there are programmers who actually invent new things. Most programmers are on the wrong side of the Bell Curve, they have never had an original thought and that is why they cannot understand why there should be software patents.

I started programming in the mid sixties, first in Algol, then in Fortran and I went on to develop both analog and digital hardware and to write software in low and high level languages. This include over a score of languages and over my career at least a hundred dialects.

The reason you and other software people who came later cannot understand this is that you lack hardware background and lack the creative spark.

It is not surprising that lower level programmers resent the fact that others are more competent. Your mentality is much like low level criminals who rationalize it is ok to steal cars and part them out or it is ok to pick pockets.

I have yet to see a criminal who doses not think that those who bring them to justice is wrong. We still toss them in jail and perhaps we need to criminalize patent theft to help those who lack an innate ability to understand the difference between right and wrong and who lack empathy for those who are victims of asset thieves to understand their flawed reasoning processes.

Re: Re: Live by the patent doesn't matter

Breathtaking arrogance Mr Riley.

How do you know that Ben is not a very creative and original programmer (or at least a bit smarter than you).

I will reply in kind (tongue somewhat in cheek!)

Your attitude is evocative of the kind of person who has so few original thoughts that they feel the need to cling to each one for grim death terrified that they will never have another - whereas those of us who are really creative have enough that they are happy to let others use them for free.

and yes - I also go back to Algol and Fortran - and have a career that has encompassed processor design. Yes that means actually designing processors (and the associated programming languages) not just using them like you "low level programmers".

At one point in my career I was asked which of the many ideas that I had come up with during our latest development I thought we should patent. I am happy to say that I replied "None of them - it's a waste of our time and so long as we keep developing the copiers will never catch up."

I have watched others waste their time with patents over the years and concluded that they are of no benefit to anyone (unless they are a lawyer.)

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Richard says: "Breathtaking arrogance Mr Riley." and "At one point in my career I was asked which of the many ideas that I had come up with during our latest development I thought we should patent. I am happy to say that I replied "None of them - it's a waste of our time and so long as we keep developing the copiers will never catch up."

If there were significant inventions Richard handed out some incredibly bad advice based on ignorance of how the patent system works. On the other hand it is probable that they did not really have a significant invention and never will have and that explains his hostility to a system with rewards real inventors at the expense of those who are incapable of producing inventions.

The whole point of the patent system is to get inventors to fully disclose the invention and to create an incentive for others to leapfrog the invention by subjecting them to a toll if they are unable to do so. It works very well and those who cannot invent get to supply the incentive with dollars to those who can invent.

The moral of this is that if Richard was capable of inventing he would do so rather than whining about those who are inventing.

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And you think your opinion matters for what reason?

Reread what I have written about the adversity which inventors face. Those of us who survive the worst which patent pirates can do are not prone to care what people like you think. What is a shame is that some people focus on resenting what others accomplish rather then putting their efforts into doing something worthwhile. I invented a name for this affliction "The Little Person Syndrome". This is different than dwarfism, in that it refers to an affliction of the mind.

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I have several software patents. I too have spent a great deal of time working on original work that has proven to be "patentable" according to the current rules of patents. About my experience in doing so, I will tell you this.

20 years ago, I would not have thought of getting something patented. It's insanely arrogant to think that nobody else could independently come up with the same or a very similar idea. I have actually seen some software written and sold that I could have a valid complaint about being infringing. However, if someone can out-innovate me (even if they started out looking at my idea) kudos to them for improving on my idea or having a similar idea just a bit better. As far as I am concerned, that's the definition of free enterprise.

I decided to get a few patents some years ago simply to protect myself from being sued at a later date. How scary of a system is that? I need to file a patent because I am relatively sure that someone is going to claim ownership of my idea and sue me.

I am in complete agreement that software patents should be abolished. I will be happy to throw mine onto the fire with the rest of them.

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Mr Riley,

The basic assumption you make is that everyone else is as mean as you are.

The problem with the patent system is that it penalises independent re-invention.

If you are not bothered by this then you cannot be a worthwhile inventor. Any good inventor will inevitably have re-invented things that (he later found out) were already known. Thus he will realise the unfairness of such a system. If you haven't re - invented anything that was already known then the odds are strong that your "independent" inventions are worthless.

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If I am mean it is a result of being stomped on by patent pirates. Most people buckle and fail but some of us manage to survive. We have been hardened by our experiences and we do not put up with crap from anyone.

All inventors stand on the shoulders of those who proceeded them. In my case I only pursued about half a percent of the inventions I produced. I did a patent search for the best ones. Studying prior art allowed me to to identify nuances of the invention which were not immediately obvious and to stack out the patentable scope of the invention.

Before patents guilds used to keep inventions secret and the arts advanced very slowly. People only disclose their inventions because they get a period of exclusive use.

Those who file a patent teach the invention. Those who are late to teaching get nothing and that creates a strong incentive to teach as soon as possible. Those who are late then have the option to leapfrog the earlier art with an invention of their own. If they can they end up on top and if they can't they can practice the invention by compensating the party who taught.

The system works very well as evidenced by how patent pirating crooked transnational companies whine.

This post is pretty much the equivilent of Nelson Muntz saying "Haw Haw!". It's rather petty, considering that Microsoft has been sued before for different things. They win some, they lose some. Pointing and laughing is pretty much a grade school response.

Understanding a business before commenting.

This post is a good example of your spewing nonsense because you keep commenting on patent issues with minimal understanding of patents and the players.

Microsoft built its market position on others inventions. Microsoft has never been especially inventive. Microsoft only started filing patents after they were handed their head a few times.

There are two basic paths which companies take. One path is companies who are true inventors. They start with a few important patents and build from there. The other path is the one Microsoft, Micron, Dell and others take, where they ride the coattails of real inventors. For every company based on true innovation (not the way big companies use the word) there are generally scores of asset thieves trying to make an easy and quick buck.

As both types of companies age they usually become alike. This is ironic and counter intuitive but it is true. The companies who started as true inventors gradually lose their ability to produce significant inventions but generally retain an entitlement minded arrogance and become predators on subsequent generations of inventors. They try to compensate for their inability to produce significant inventions by filing large qualities of increment improvement patents. IBM's massive patent filings are another example of this.

Meanwhile, the companies who started as parasites generally figure out that filing hordes of minor incremental patents serves as a good defensive tool when they get into a squabble with other large entities, and this is what Microsoft has been doing in recent years. There is a reason that Microsoft is repeatedly sued and that they keep losing or settling those cases.

Like people, companies go through a life cycle. Young ones, both those based on invention and the others take great risks chasing big rewards. Those who succeed become more conservative as they age, risk adverse and when they are king of the hill become very arrogant. They take liberties with others intellectual property counting on their ability to bankrupt junior parties through abuse of the process of law. For the most part that abuse takes the form of them using delaying tactics.

The reason that inventors like rocket docket venues such as Eastern Texas which do not allow procedural delays is that they need a fast resolution to their cases in order to survive.

It is common for inventors to license or sell their first inventions in order to build capital. Later, inventors generally use that capital to produce more inventions and to build companies or to partner with others who are better suited to build companies. The problem is that a majority of those companies along with the jobs and prosperity they would have produced are never getting a chance to flower because patent piracy by the biggest companies causes them to be still born. So on one hand those large companies are shipping jobs and even worse our nation's collective intellectual capital out of the country and at the same time destroying new job creation. This is not a sustainable business model.

When big companies misappropriate their inventions inventors must partner with patent enforcement entities. The cost of patent litigation starts at about two million and can easily run into tens of millions. There are very few inventors or small companies who can bear this cost alone. Even when they find a patent enforcement partner their path to success is delayed at least five years in a rocket docket venue and in other venues patent pirating companies can delay justice for decades.

There is a huge difference between the nature of any member of the Coalition for Patent Fairness (Piracy Coalition) like Microsoft and a small company based in a few inventions. One difference is the scope and value of inventions. Small entity patents tend to be broader.

Because of the high costs of patent litigation big companies are generally able to steal up to ten million with complete impunity, between ten and a hundred million it is questionable rather an inventor can get justice. It is only over a hundred million that there is reasonable certainty of investors defending a patent. This is why you will rarely see cases with judgments less than a hundred million dollars.

It is important that people understand that there would not be patent enforcement entities if not for the fact that large companies are creating huge liabilities by intentionally rolling the dice infringing others patents. What they like to call trolls are simply property holders defending their rights against those who steal on a very grand scale. Patent pirating companies can end their litigation problems by acquiring rights to an invention before using it.

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Because I could not afford to get justice through the legal system I developed a host of guerrilla warfare tactics to defend my IP rights.

So when companies thought they were going to quietly due me in because they thought I was an easy mark the reality was that I was waiting in that dark room with a very sharp knife :)

I then went on to quietly work behind the scenes to cultivate availability of contingency litigators and inventors.

Those efforts received a considerable boost in recent years when legislation was passed which drove some very talented litigators into patent enforcement.

This has made our gun nearly as effective as what big companies have. And today they are being held accountable. That is why just like school yard bullies break down and cry when they eventually pick the wrong fight that big companies are whining about mythical trolls today.

As the costs of their disreputable conduct escalate they will eventually figure out that they need to stop stealing.

At that point they will start acquiring rights before taking and we can all live happily ever after.

Changing the dynamics of the fight.

"The real smart move in these circumstances is to get rid of the gun - why am I not surprised that you aren't clever enough to realize that?"

In my case I changed the nature of the fight to one which I could win in some measure.

In the short term I could not get justice because patent enforcement entities where not available. So I was forced to settle for a small part of the value of my invention which was worth about $40 million.

I used what I was able to extract to fund advocacy work and went on to devote the bulk of my time over the last twenty years to developing a multitude of tactics to adjust patent thieves attitudes.

There is a joke in the inventor community about how organizing inventors is like herding cats. Yet as far as I can tell I am the first person to successfully organize inventors. While I started this process it was only through the efforts of many other volunteers that I was able to bring it to this point.

Forty years ago companies were able to steal with total impunity. Today they are not and we will keep up the pressure until these crooks learn that there is a better way.

Killing patents will only serve to allow low cost labor competitors to take the fruits of American ingenuity. It would kill wealth creation in America because all our inventions would only serve to increase others profit rather than our own.

America cannot sustain our standard of living reselling low profit commodity products and service from low wage countries. It is only through higher profit margins sustained by patent protection that we can maintain our higher standard of living.

Low level software hacks cannot compete with programmers in low wage countries and they will be replaced without patent protections.

The bottom line is that while low level programmers may resent the fact that there are inventors in their mist their fate is dependent on protecting the inventors and their inventions for the benefit of our people.

Richard and Ben both serve as good examples of the kind of short term gain oriented mentality which has placed America in the edge of an economic cliff. Killing patents would only serve to push us over the cliff.

Re: Re: Changing the dynamics of the fight.

Copyright only protects the nearly the exact expression and is very limited. A patent protects the essence of the invention. They are very different.

Early on people used copyright for software because that was the only tool they had to use. It never protected what had been invented.

As computing power increased so did the scope of what can be done in software. In fact, many chips underlying hardware is programmable to allow them to be tailored in micro code to specific uses. For many years the microcode was permanent once it was burned into the chip. Today it is often reprogrammable to allow updates.

My point is that inventions can be often be expressed as either hardware or software. The trend to expressing invention is software is only going to accelerate. Excluding patent protection for software will only serve to allow our international competitors to take advantage of American ingenuity without compensating us. It will result in an ever accelerating loss of jobs and a precipitous drop in our competitiveness.